Irish Help at Home LLC v. Rosemary Melville , 679 F. App'x 634 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRISH HELP AT HOME LLC and No. 15-15830
BRIDGET MCDERMOTT,
D.C. No. 3:13-cv-00943-MEJ
Plaintiffs-Appellants,
v. MEMORANDUM *
ROSEMARY MELVILLE, California
Service Center, U.S. Citizenship and
Immigration Services; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Argued and Submitted February 17, 2017
San Francisco, California
Before: TASHIMA and HURWITZ, Circuit Judges, and ADELMAN,** District
Judge.
Irish Help at Home LLC (“Irish Help”) filed a petition pursuant to 8 U.S.C.
§ 1101(a)(15)(H)(i)(b) to classify Bridget McDermott as a nonimmigrant “specialty
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
occupation” worker. The United States Citizenship and Immigration Services
(“USCIS”) denied the petition, finding that Irish Help failed to establish that the
Deputy Controller position that McDermott would fill was a specialty occupation.
In this action filed by Irish Help seeking review under the Administrative Procedure
Act (“APA”), the district court granted summary judgment to the government
defendants. We have jurisdiction of Irish Help’s appeal under 28 U.S.C. § 1291 and
affirm.
1. The determination by the USCIS that the Irish Help Deputy Controller
position was not a specialty occupation was not “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Family Inc. v. USCIS, 469
F.3d 1313, 1315 (9th Cir. 2006) (quoting 5 U.S.C. § 706(2)(A)) (describing standard
of judicial review of agency action under the APA). The Department of Labor’s
Occupational Outlook Handbook entry on Financial Managers did not compel the
conclusion that the position met the statutory requirement, 8 U.S.C. § 1184(i)(1)(B),
of requiring a degree in a “specific specialty.”1 See In re Michael Hertz Assocs., 19
1
The Handbook described the educational requirements for Financial
Managers as follows:
A bachelor’s degree in finance, accounting, economics, or business
administration is often the minimum education needed for financial
managers. However, many employers now seek candidates with a
master’s degree, preferably in business administration, finance, or
economics.
2
I. & N. Dec. 558, 559–60 (B.I.A. 1988) (“[T]he requirement of a degree of
generalized title, such as business administration,” does not render an occupation a
“profession.”). A prior unpublished and non-precedential USCIS decision
interpreting a previous Handbook edition does not make the decision in this case
arbitrary or capricious. See Chan v. Reno, 113 F.3d 1068, 1073 (9th Cir. 1997)
(“[U]npublished precedent is a dubious basis for demonstrating the type of
inconsistency which would warrant rejection of deference.” (citation and internal
quotation marks omitted)).
2. The USCIS “examine[d] the relevant data” submitted by Irish Help and
“articulate[d] a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The USCIS
satisfactorily explained why it concluded that the evidence proffered by Irish Help
did not establish a degree requirement “common to the industry in parallel positions
among similar organizations.” 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). The agency also
sufficiently explained why it found Irish Help’s claims regarding the complexity of
the Deputy Controller position unsubstantiated. See id. § 214.2(h)(4)(iii)(A)(2),
(4).2
AFFIRMED.
2
Given these conclusions, we need not reach the USCIS’s alternative holding
that McDermott was not qualified for a specialty occupation.
3